Do Online Death Threats Count as Free Speech?

Exhibit 12 in the government’s case against Anthony Elonis is a screenshot of a Facebook post he wrote in October 2010, five months after his wife, Tara, left him. His name appears in the site’s familiar blue, followed by words that made Tara fear for her life: ‘'If I only knew then what I know now . . . I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.'’

Exhibit 13, also pulled from Facebook, is a thread that started when Tara’s sister mentioned her plans to take her niece and nephew — Elonis’s children — shopping for Halloween costumes. Tara responded and then Elonis did, too, saying their 8-year-old son ‘'should dress up as a Matricide.'’ He continued: ‘'I don’t know what his costume would entail though. Maybe your head on a stick?'’ This time, Elonis included a photo of himself, holding a cigarette to his lips.

After Tara saw these posts — and another one, from the same time, which begins: ‘'There’s one way to love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts'’ — she went to court in Reading, Pa., and got a protection-from-abuse order against her husband.

On Nov. 7, three days after Tara got the ruling, Elonis linked to a video satire by the comedy troupe the Whitest Kids U’ Know. On camera, a member of the group mocks the law against threatening to kill the president. Elonis mimicked the group’s lines but subbed in his own text, to make it about Tara. ‘'I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room,'’ he wrote. ‘'Yet even more illegal to show an illustrated diagram.'’ Elonis added a diagram with a getaway road, a cornfield and a house. ‘'Art is about pushing limits,'’ his post concluded. ‘'I’m willing to go to jail for my Constitutional rights. Are you?'’

At the same time that he was posting about Tara, Elonis used Facebook to threaten his co-workers at an amusement park in nearby Allentown, where he worked. In one photo, from Halloween, Elonis held a fake knife to a co-worker’s neck. They were both dressed in costume, but Elonis added the caption, ‘'I wish.'’ His boss saw the image and caption and fired Elonis. He also called the F.B.I. In December 2010, Elonis was charged under a federal law that makes it a crime to use a form of interstate communication (like the Internet) to threaten to injure another person.

A jury convicted Elonis, and he spent more than three years in prison. On December 1, the Supreme Court will hear Elonis’s First Amendment challenge to his conviction — the first time the justices have considered limits for speech on social media. For decades, the court has essentially said that ‘'true threats'’ are an exception to the rule against criminalizing speech. These threats do not have to be carried out — or even be intended to be carried out — to be considered harmful. Bans against threats may be enacted, Justice Sandra Day O’Connor wrote in 2003, to protect people ‘'from the fear of violence'’ and ‘'from the disruption that fear engenders.'’ Current legal thinking is that threats do damage on their own.

Elonis, however, claims that he didn’t make a true threat, because he didn’t mean it. ‘'I would never hurt my wife,'’ he told the jury. ‘'I never intended to threaten anyone. This is for me. This is therapeutic.'’ Talking about the loss of his wife, he continued, ‘'helps me to deal with the pain.'’ He had copied the Whitest Kids U’ Know, along with the rapper Eminem, to try his hand at art and parody. Tara said she knew her husband had borrowed some of his words, but they still scared her. ‘'I felt like I was being stalked,” she said in court. ‘'I felt extremely afraid for mine and my children’s and my family’s lives.'’

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A detail from Exhibit 12, a screenshot from the Facebook profile of Anthony ElonisCreditUnited States Attorney’s Office, Eastern District of Pennsylvania

The central question for the Supreme Court will be whose point of view — the speaker’s, or the listener’s — matters. The jury was instructed to convict Anthony Elonis if it was reasonable for him to see that Tara would interpret his posts as a serious expression of intent to harm her. The court could uphold the standard, or it could require that jurors be asked to convict only if they believe the speaker truly intended to threaten harm. In essence, the court will have to decide what matters more: one person’s freedom to express violent rage, or another person’s freedom to live without the burden of fear?

The legal issue is connected to a larger question: how to deal with the frequent claim that online speech is a special form of playacting, in which a threat is as unreal as an attack on an avatar in World of Warcraft. Gilberto Valle — known as the Cannibal Cop for fetish chat-room messages in which he talked of capturing, cooking and eating specific women — persuaded a judge to overturn his conviction by saying he was just expressing a dark fantasy. In the ongoing ‘'GamerGate'’ campaign, a faction of video-game enthusiasts tweeted death threats to women who had criticized misogyny in video-game culture. When a few of the women felt scared and left their homes, some gamers scoffed, dismissing the threats as ephemeral.

If it’s possible to shrug off anonymous online threats, it’s much harder to do that when a threat is made by someone you know intimately. In these cases, dread felt by targets is rational and may leave them struggling to sleep, eat or work. To escape, they may uproot themselves and their families. This kind of disruption fits with the Supreme Court’s rationale for allowing laws that ban threats. ‘'We usually think of freedom of speech as enhancing liberty, but this is speech that takes away someone else’s liberty,'’ said Danielle Citron, a law professor at the University of Maryland.

But advocates for civil liberties want to give more breathing room to free speech and don’t think the question of whether a statement online qualifies as a threat should be ‘'in the eye or ear of the beholder,'’ the A.C.L.U. and other groups put in a brief they filed in the Elonis case. ‘'Words are slippery things, and one person’s opprobrium may be another’s threat.'’ In a case that worries free-speech activists, a teenager named Justin Carter got into a Facebook exchange and wrote, ‘'I think I’ma SHOOT UP A KINDERGARTEN.'’ After someone in Canada alerted the police, he spent months in a Texas jail for that comment and is still facing charges. ‘'I wasn’t trying to scare anyone, I was trying to be witty and sarcastic,'’ he wrote to the judge. ‘'I failed, and I was arrested.'’

To prevent people from being locked up over a misunderstanding, the A.C.L.U., like Elonis, wants a higher bar for conviction. ‘'The age-old principle is that we don’t criminalize speech without that clear intent,'’ said Lee Rowland, an A.C.L.U. staff attorney.

The truth is that even when intent to do harm seems obvious, online threats are rarely prosecuted. Citron looked at the federal law that is the basis for the Elonis case and found that it has been enforced fewer than 50 times, online and off, over the past eight years. Stalking laws, domestic-violence advocates say, aren’t enforced much, either.

If the Supreme Court requires evidence of a speaker’s intent to harm in true-threats cases, it could give the police and prosecutors one more reason not to bring them. Maybe that’s simply the unavoidable consequence of a broad interpretation of the First Amendment. Let’s be clear, though, that such an approach to free speech doesn’t come free. The choice in this case between points of view — Anthony’s or Tara’s — mirrors another choice, between types of personal liberty. His or hers.